(Prayer: This RFA is filed under Section 96 r/w Order XLI Rule 1 of CPC., against the judgment and decree dated 12.12.2019 passed in o.s.no.7861/2002 on the file of the xiv additional city civil judge, at Bengaluru (cch.no.28), decreeing the suit for declaration.)
Cav Judgment:
1. This appeal is filed by defendant Nos.1 to 3 – appellants challenging the Judgment and Decree dated 12.12.2019 passed in O.S.No.7861/2022 by XIV Additional City Civil Judge, Bangalore (CCH- 28).
2. The respondent -plaintiff has filed the suit praying to grant the following reliefs:
“(a) grant the relief of declaration, declaring that the plaintiff is the sole, absolute owner in respect of the suit schedule property;
(b) grant the relief of possession by directing the defendants No.1 to 3 to handover vacant possession of the suit schedule property;
(b) b) Declare the sale deed dt.20.06.2003 executed by the 1st defendant in favour of the 2nd defendant and so also the sale deed dt. 17.04.2009 executed by the 2nd defendant in favour of the 3rd defendant are not binding on the plaintiff as the same are null and void.
(c) Grant such other relief or reliefs including costs.”
3. The said suit is filed in respect of suit schedule property. The description of which is as under:
“SCHEDULE
All the piece and parcel of the property bearing plot No.19 – Khatha No.586, situated at Kodigehalli Grama, Yelahanka Hobli, Uttar Taluk, Bangalore, measuring East to West 30 feet and North to South 40 feet, bounded by:
East by : Government Road
West by : Plot No.20
North by : Plot No.18
South by : 25 feet road.”
4. The case of the respondent -plaintiff before the trial Court is as under:
a. The plaintiff is absolute owner in constitutive possession and enjoyment of suit schedule property. Prior to purchase of the said property, the vendor of the plaintiff delivered the vacant possession in her favour on 19.04.1995 itself. He has also executed affidavit dated 26.06.1998 and thereafter executed registered sale deed on 19.12.1998 for valuable consideration of Rs.1,38,000/-. The plaintiff has also paid betterment charges of Rs.13,00,325/- and Khata is also changed in her name. The plaintiff during December -1998 started construction/repair and alteration work in respect of small shed in the suit schedule property. The plaintiff constructed 03 sheds with asbestos sheet roofing at that time defendant No.1 interfered along with some unknown rowdy to stop construction work. In that regard plaintiff gave complaint to the concerned police against the defendant. But police have not taken any action. Defendant No.1 and her husband are trying to illegally interfering with construction. The possession of the suit property by defendant No.1 without any right and interest. Therefore, the plaintiff got filed suit against them in O.S.No.378/1999 on the file of City Civil Court, Bangalore for the relief of injunction. The Court has granted interim temporary injunction against defendants by the order dated 21.01.1999 and the same has been communicated to defendants. In spite of the interim order, defendants committed willful disobedience of the order. Therefore, the plaintiff got filed application under Order XXXIX Rule 2A of CPC for appropriate relief and also filed complaint before Hebbal Police Station on 12.02.1999. Thereafter, defendant No.1 and her husband - Kuppuswami approached the plaintiff and requested to allow them to stay in the shed temporarily for some time free of rent. At that time, defendant No.1’s husband was working as driver to the C.M.C President's car, as the suit schedule property being nearest to his place of work and being poor, so the plaintiff agreed to occupy the said shed, yielding to the request of defendant No.1, the possession of defendant No.1 being permissive, without any advance or rent. Accordingly, defendant No.1 started residing in the shed along with her family since 27.06.1999.
b. Defendant No.1 all of sudden started construction of temporary shed adjacent to the shed in the occupation of defendant No.1 despite of all efforts made by the plaintiff and her husband to stop the illegal construction. Defendant No.1 has un-authorisedly completed construction work overnight. Thereafter, defendant No.1 proclaimed that she is having GPA of vendor of the plaintiff in respect of the suit schedule property. On enquiry, the plaintiff came to know about the defendant having created the said GPA to lay false claim over the suit schedule property.
c. Considering this, the plaintiff intended to construct compound wall to her property to prevent illegal claim of defendant No.1 and her husband over the suit schedule property and at that time defendant No.1 threatened the plaintiff and her husband with dire consequences. Therefore, complaint has been lodged against them on 12.02.1999 and 06.08.1999. The suit of the plaintiff was decreed on 04.12.2007 and thereafter, the plaintiff got filed Execution Case No.1009/2008. The plaintiff has been put in possession of the suit schedule property through the process of law on 12.11.2009. Thereafter, defendant No.1 during pendency of the said miscellaneous case, defendant No.2 -K. Kanchana filed application for impleading her in the case which was dismissed. The said K. Kanchana contended that she has purchased the suit schedule property from defendant No.1 on 26.03.2023. In turn, defendant No.2 sold portion of the suit schedule property to defendant No.3 under registered sale deed dated 17.04.2009 and after restoration of miscellaneous case, the plaintiff has filed application for impleading defendant Nos.2 and 3 which were allowed. Though, the plaintiff in possession of the suit schedule property which was taken under due process of law in an execution proceedings through the Court, defendants again forcibly took possession of the suit schedule property dispossessing the plaintiff on 10.12.2009. In this regard, complaint has been registered against defendant No.1 before concerned police on 16.08.2010. Defendant No.1 high-handedly and illegally trespassed into the suit schedule property on 07.03.2011 by dispossessing the plaintiff and therefore, the plaintiff has filed complaint on 07.03.2011 before concerned police.
d. The plaintiff inducted 06 tenants, but later on 24.02.2012 the tenants who are in occupation of the first floor vacated and defendant Nos.1 and 2 breaks open the lock and un-authorisedly occupied the same. Thereafter, on 08.03.2012 another tenant of the first floor was vacated on 05.02.2012 and defendant Nos.1 and 2 un-authorisedly break open the door, locked and took the possession illegally. Hence, defendants are in illegal possession of the suit schedule property. Therefore, the present suit is filed for declaration that the plaintiff is the absolute owner of the suit schedule property and for grant of relief of possession by directing defendant Nos.1 to 3 to hand over vacant possession of the suit schedule property and to declare the sale deed dated 20.06.2003 executed by defendant No.1 in favour of defendant No.2 and also sale deed dated 17.04.2009 executed by defendant No.2 in favour of defendant No.3 are not binding on the plaintiff as the same are null and void.
5. Defendant No.1 has filed written statement and contented the following:
a. Defendant No.1 denied that the plaintiff is owner in constructive possession of the suit schedule property purchased under registered sale deed dated 09.12.1998 from D. Krishnamurthy for consideration of Rs.1,38,000/- and prior to execution of sale deed the vendor had already agreed to sell the scheduled property to her under General Power of Attorney (hereinafter referred to ‘GPA’ for brevity) dated 19.04.1995. Defendant No.1 has also denied that during December -1998, she started construction/repair and alteration work in respect of small shed in the scheduled property and the plaintiff constructed three sheds with asbestos sheet roofing and defendants started interfering over the said construction work without having right and interest. It is contended that defendant No.1 is not aware about the filing of suit by the plaintiff in O.S.No.378/1999 on the file of City Civil Court, Bangalore and also obtaining a temporary injunction in the said suit. Defendant No.1 denied that they violated the interim order granted in the said suit and that the defendant and her husband requested the plaintiff to allow them to reside in the suit schedule property.
b. Defendant No.1 denied that defendant No.1 started constructing 03 sheds abutting to the shed situated in the suit schedule property without the permission of the plaintiff illegally. Defendant No.1 proclaimed that she is the owner of the suit property by virtue of GPA executed by D. Krishnamurthy.
c. The suit of the plaintiff is not maintainable and defendant No.1 is owner in possession and enjoyment of the suit schedule property as she has purchased it for valuable consideration. As registration was barred at that point of time said D. Krishnamurthy has executed an agreement of sale dated 06.04.1994 and irrevocable power of attorney acknowledging the delivery of possession under affidavit dated 17.04.1994 and also delivered physical and actual possession to defendant No.1. Ever since then defendant No.1 is in possession and enjoyment of suit schedule property. Defendant No.1 by exercising ownership over suit schedule property has executed registered sale deed dated 20.06.2003 in favour of defendant No.2 and she was put in physical possession of the suit scheduled property. The plaintiff was never in possession of suit schedule property at any point of time. Even her vendor was not in possession on the date of alleged agreement of sale and power of attorney in favour of plaintiff, as he already parted with possession of the suit schedule property to defendant No.1. The vendor of defendant No.1 has also executed registered confirmation deed dated 18.12.2013 in favour of defendant No.2. The plaintiff has filed the suit by creating some documents only with malafide intention of harassing defendant No.1.
6. Defendant No.2 who has been impleded subsequently in the suit, has filed written statement. The contents of the said written statement are as under:
a. The averments of the plaint are all false.
Defendant No.1 is absolute owner of the property sold to defendant No.2. Defendant No.2 had sold western portion of the same in favour of Smt. Krishna Devi, wife of S. Anand under registered sale deed dated 17.04.2009 and she was put in possession of the said property and accordingly Khata has been bifurcated. The plaintiff in collusion with D. Krishnamurthy has created some documents and filed instant suit which is not maintainable. The plaintiff is not entitled for the relief sought in the suit and prayed for dismissal of the suit.
7. Defendant No.3 has not appeared in the suit and she has been placed ex -parte.
8. On the basis of the said pleadings, the trial Court has framed the following issues and additional issues:
” 1. Whether the plaintiff proves to be the absolute property? : owner of the suit schedule property?
2. If so, whether the plaintiff is entitled to seek the relief of declaration to that effect?
3. Does the plaintiff prove the defendant to have unauthorisedly constructed shed in the suit property?
4. If so, does the plaintiff prove to be entitled for its possession?
5. Does the 2nd defendant prove to be the absolute owner of the suit schedule property?
6. Does the 2nd defendant prove the confirmation deed, dated 18.12.2013?
7. Does the 2nd defendant further prove to be in physical possession and enjoyment of the suit schedule property?
8. Does the 2nd defendant prove the right of the 1st defendant in the suit property. in terms of Sec.202 of the Indian Contract Act?
9. Does the 2nd defendant prove his transaction is in terms of Section 208 of Indian Contract Act?
10. Whether the plaintiff is entitled for the reliefs as prayed for?
11. What Order or decree?
Additional Issue dt. 27.03.2017
1. Whether the 2nd defendant proves to be lawful owner and in lawful possession of the suit schedule property?
Additional Issues dt. 12.10.2017
1. Whether the defendant No.1 proves that he has purchased the suit schedule property for voluble consideration through execution of sale dated 06.04.1994?
2. Whether the defendant No.1 further proves that he was put in possession by virtue of the said agreement of sale?
3. Whether the defendant No.1 further proves that there was a ban regarding registration as on 06.04.1994?
4. Whether the defendant No.1 further proves that he has exécuted registered sale deed in favour of defendant No.2 on 20.06.2013 in respect of the schedule property and defendant No.2 is in possession of the same.?”
a. The plaintiff in order to prove her case has examined her husband and also power of attorney holder as P.W.1 and got marked documents as Ex.P1 to Ex.P17. Defendant No.2 has been examined as D.W.1 and got marked documents as Ex.P1 to Ex.P33.
b. The trial Court, after hearing the arguments and appreciating the evidence on record has answered Issue Nos.1 to 4, 6, 7, 10 and Additional Issue No.4 in the affirmative, Issue No.5,8,9, Additional Issue No.1 dated 27.03.2017 and Additional Issue No.1 to 3 dated 12.10.2019 in the negative and decreed the suit of the plaintiff.
c. Aggrieved by the said judgment and decree, defendant Nos.1 to 3 have filed the present appeal.
9. Heard arguments of learned counsel for appellants and learned counsel for the respondent and perused the written argument filed by learned counsel for the respondent.
10. Learned counsel for appellants would contend that Sri D. Krishnamurthy had executed sale agreement in favour of defendant No.1 on 06.04.1994 agreeing to sell the suit scheduled property in favour of defendant No.1 and possession of the suit schedule property has been handed over on the date of said sale agreement. The said sale agreement is at Ex.D5. Subsequently, the said D. Krishnamurthy had executed GPA dated 17.04.1994 – Ex.D4 in favour of defendant No.1 and also sworn to an affidavit dated 17.04.1994 –Ex.D6 confirming the possession given under sale agreement. By virtue of the said documents Ex.D4 to D6, defendant No.1 is in possession of the suit schedule property. The said GPA is irrevocably power of attorney given with possession of the suit schedule property and for consideration. The said D. Krishnamurthy had no right, title and interest over the suit schedule property to execute sale deed dated 09.12.1998 (Ex.P1) in favour of the plaintiff. The plaintiff has not been put in possession of the suit schedule property as the possession was with defendant No.1. The suit ought to have been filed within 03 years from the date of registration of the sale deed dated 09.12.1998 (Ex.P1) but the suit has been filed in the year 2002 and it is barred by limitation under Articles 59 and 65 of the Limitation Act. The plaintiff has not examined her vendor Sri D. Krishnamurthy and also not made him as party to the suit. The plaintiff has not entered the witness box, but her husband has been examined as P.W.1. On the point of limitation, learned counsel for appellants has placed reliance on the decision of the Hon'ble Apex Court in the case of Rajpal Singh Vs Saroj (Deceased) through LR's and Another (In (2022) 15 SCC 260). He also placed reliance on the decision of the Hon'ble Apex Court in the case of Ramesh Chand (D) THR.LRs Vs Suresh Chand and another (In 2025 INSC 1059) wherein it is held as under:
“28. Apart from the aforementioned documents, there is also an affidavit dated 16.05.1996 said to have been executed by Sh. Kundan Lal in favour of the plaintiff, along with a receipt of consideration, wherein Sh. Kundan Lal is said to have acknowledged receipt of full consideration for the sale of suit property to the tune of Rs. 1,40,000/- from the Plaintiff. The said instruments do not confer a valid title upon the plaintiff because as per Section 54 of TP Act, only through a deed of conveyance can a title can be transferred, and none of the other documents and recitals in the said affidavit are not proved by examining any other independent witnesses.”
11. He has also placed reliance on the decision of the Hon’ble Apex Court in the case of Shanti Devi (Since Deceased) Through LRs Vs Jagan Devi and others (In 2025 SCC OnLine SC 1961) on the point of limitation, contending that the suit has to be filed within 03 years from the date of sale deed. He further contended that the party has to approach the Court with clean hands and on that point he has placed reliance on the decision of the Hon’ble Apex Court in the case of Dalip Singh Vs State of Uttar Pradesh and Others (In (2010) 2 SCC 114) . On these grounds, he prayed to allow the appeal.
12. Per contra, learned counsel for the respondent would contend that defendant No.1 who claims the property through Ex.D4 -GPA, Ex.D5 -sale agreement and Ex.D6 affidavit has not entered the witness box to prove her case. Defendant No.1 has not filed any counter claim. The document ought to be registered within four months as per Section 23 of the Registration Act and the circular/notification issued in that regard. As per decision relied upon by learned counsel for appellants in the case of Shanti Devi (Supra), the Hon'ble Apex Court has held that power of attorney is not sale. The sale deed said have been executed by defendant No.1 in favour of defendant No.2 dated 20.06.2003 has not been produced. In the absence of the said sale deed, whether the Confirmation Deed –Ex.D7 dated 18.12.2013 can be considered. There are material alterations in GPA in the name of agent and in the description of the property etc., that itself indicate that the said document is created by defendant No.1. The very fact that defendant No.1 has not entered the witness box itself indicate that documents relied upon by defendant No.1 are false and defence setup by her is also false. Defendant No.1 or the other defendants have not examined the said D. Krishnamurthy, who is said to have executed Ex.D4 to 6 in favour of defendant No.1.
13. In reply, learned counsel for appellants would contend that there are contradictory averments in the plaint regarding the possession of the suit schedule property. The sale deed said to have been relied upon by the plaintiff (Ex.P1) is sham document. The plaintiff has not produced GPA and sale agreement stated in the plaint, said to have been executed by D. Krishnamurthy in her favour.
14. On hearing the arguments of the learned counsel for respondent and on perusal of trial Court records, the following points arises for consideration.
i) Whether the trial Court is justified in holding that the plaintiff has established her title over the suit schedule property and is entitled for grant of relief of declaration?
ii) Whether the trial Court is justified in holding that the defendants have dispossessed the plaintiff from the suit schedule property and therefore she is entitled for possession of the suit schedule property?
iii) Whether the trial Court is justified in holding that the defendants have interfered with the plaintiff’s peaceful possession of the suit schedule property? Reasons on point Nos.(i) to (iii) It is the specific case of the plaintiff that she had purchased the suit schedule property under registered sale deed dated 09.12.1998 executed by Krishnamurthy in her favour. Said sale deed is at Ex.P1. It is the further case of the plaintiff that she was put in possession of the suit schedule property under the said sale deed and even prior thereto under G.P.A. and sale agreement. It is the specific defence of defendant No.1 that Krishnamurthy had executed sale agreement dated 06.04.1994 (Ex.D5), agreeing to sell the suit schedule property in her favour and handed over possession and subsequently said Krishnamurthy executed GPA dated 17.04.1994 in her favour (Ex.D4) and also sworn to an affidavit dated 17.04.1994 (Ex.D6), confirming the said sale agreement and GPA and handing over possession. It is further case of defendant No. 1 that she had executed sale deed dated 20.06.2003 in favour of defendant No.2. Said sale deed has not been produced. Defendant No. 1, in order to prove her defence, has not entered the witness box.
15. When a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross- examined by the other side, a presumption would arise that the case set up by him is not correct. The Hon'ble Apex Court in the case of Vidhyadhar vs. Manikrao and another (In 1999 (3) SCC 573) has held as under:
“17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct … ..”
In the present case, defendant No.1 has not entered the witness box to state her case and she has not offered herself to be cross-examined by the other side. Therefore, a presumption arises that the case set up by her is not correct.
16. More so, the document on which defendant No.1 has relied upon, which is at Ex.P.4, i.e., GPA dated 17.04.1994 has material alteration. There is scratching of the name of agent and mentioning the name of defendant No. 1, site number and boundaries as well as measurements of the property have been altered. Even in Ex.D.6 - affidavit the property numbers, its measurements and boundaries and consideration amount have been erased and re-typed. Ex.D.4 - GPA is not a registered document. On the contrary, Ex.P.1 - sale deed executed by D. Krishnamurthy in favour of plaintiff is a registered document. After execution of the said sale deed, the plaintiff has got her name entered in the property records in BBMP and it has been assessed to tax. She has paid betterment charges and also property tax as per Ex.P.2 to Ex.P.17. Said documents clearly establish the title of the plaintiff over the suit schedule property.
17. The said D. Krishnamurthy, after execution of the sale deed dated 09.12.1998 (Ex.P.1) in favour of the plaintiff, has no right, title and interest over the suit schedule property. Therefore any sale deed executed as a GPA holder of the said Krishnamurthy by defendant No. 1 in favour of defendant No. 2 is without any right, title and interest over the suit property and therefore it is not valid and it is a void document. Defendant No. 2 does not have any right, title or interest over the suit sale property under the said sale deed dated 20.06.2003. Even the said sale deed dated 20.06.2003 said to have been executed by defendant No. 1 in favour of defendant No. 2 has not been produced by defendant No. 2 who has led evidence as D.W.1. Therefore when defendant No. 2 has not got title to the suit property she cannot alienate portion of it. Therefore said sale deed executed by defendant No. 2 in favour of defendant No. 3 dated 17.04.2009 is not binding on the plaintiff, is without title and it is void.
18. Plaintiff, after passing of judgment and decree in O.S. No. 378/1999, has filed Ex.P. No. 1009/2008 and in the said execution case, possession of the suit schedule property has been handed over to the plaintiff through the Court amina in the said execution proceedings on 12.11.2009. The order sheet of the said Execution Case No.1009/2008 is at Ex.P.41, copy of the execution petition is at Ex.P.42 and report of the Court bailiff is at Ex.P.45. Defendant No.1 who has contended that Misc. case No. 548/2001 has been filed praying to set aside the judgment and decree passed in O.S.No.378/1999, has not produced any document to establish her contention about allowing of the said Misc.case No. 548/2001 and restoration of their possession of the suit property by virtue of the order passed in the said miscellaneous case. Therefore the possession of the defendant over suit schedule property is illegal and therefore plaintiff is entitled to possession of the suit schedule property. The documents produced by the plaintiff with regard to the complaint to the Police and registration of FIR as per Ex.P.32 and Ex.P.31, complaint as per Ex.P.35 and also FIR as per Ex.P.34 clearly indicate that the defendants have interfered with the plaintiff’s peaceful possession and enjoyment of the suit schedule property and they have undoubtedly taken possession of the suit schedule property. Accordingly, points (i) to (iii) are answered.
19. The trial Court has rightly decreed the suit. There are no reasons to interfere with the well-reasoned judgment and decree passed by the trial Court.
20. In the result, the appeal is dismissed
